Prosecution rights of appeal

Appeal by way of case stated

1. A party to proceedings before a magistrates' court 1 (or before the Crown Court, where the proceedings involve an appeal from a magistrates' court, such as an appeal against summary conviction 2) may appeal the court's decision to the High Court 'by way of case stated' on the ground that a decision was wrong in law or in excess of the court's jurisdiction (but not, for example, on the ground that the decision was against the weight of the evidence).

2. 'Case stated' is a statement of facts prepared by one court for the opinion of another on a point of law. The aggrieved party applies to the magistrates' (or Crown) court to 'state a case' for the opinion of the High Court on the particular question of law or jurisdiction involved 3.

3. As parties to the proceedings, both the prosecution and defence can use this route of appeal, although it is more commonly used by the prosecution.

Appeal from the magistrates' court by case stated

4. Any appeal by the prosecution against the dismissal 4 of a case by a magistrates' court is by way of case stated to the Divisional Court of the Queen's Bench Division 5. The Administrative Court Office is responsible for listing proceedings in the Divisional Court. The appeal must be on the ground that the decision was wrong in law or in excess of jurisdiction; this can include sentencing if the sentence imposed was so far outside the normal limits that there is a point of law at issue 6 (ie not simply that the sentence is considered to be too lenient).

5. The prosecution cannot appeal against a decision of fact. Exceptionally, a gross mistake of fact may be challenged if it amounts to an error of law, for example, where there is no evidence upon which the magistrates could have reached that decision 7. An error of law arising during the course of committal proceedings cannot be challenged 8.

6. Magistrates may only refuse to state a case if they believe the application to be frivolous (but not if an application is made by or under the direction of the Attorney General) 9, in which case a certificate to that effect must be given, upon request. If the point raised is in any way arguable (albeit that it has no merit) 10, the magistrates must state a case. If a point of law is involved, the application cannot be refused as frivolous 11.

7. If the magistrates consider the applicant's request lacking in merit (but not frivolous), they may require a "recognizance", with or without "sureties" 12, to "prosecute the appeal without delay" and for the applicant to agree to the payment of costs which may be awarded against the applicant 13.

8. Section 111(6) of the Magistrates' Courts Act 1980 allows the applicant to apply to the High Court for a mandatory order requiring the magistrates' court to state a case. Legal Adviser's Office should be contacted before any such application for an appeal is made.

9. The case stated is heard by at least two High Court Judges, and more often three, including the Lord Chief Justice 14. No evidence is considered, so the hearing consists entirely of legal argument by counsel. For that reason, the prosecutor must ensure that the case is stated accurately and fully records all the facts. The court may reverse, affirm or amend the decision in respect of which the appeal has been made or give appropriate directions to the magistrates 15. This includes the power to order a rehearing before the same or different magistrates wherever such a course is appropriate and where a fair trial is still possible 16.

Procedure

10. When deciding whether there should be an appeal, Legal Adviser's Office will consider the following matters:

  • Is there a point of law involved?
  • Does the law require clarification?
  • What are the consequences for enforcement for this case and for future and ongoing cases?
  • What is the likelihood of the appeal succeeding?

11. An appeal will not be taken simply because it is likely to succeed, if the benefits would not justify the expenditure of resources.

12. Where an appeal is considered, a report should be prepared summarising:

  • the evidence given by the prosecution and the defence;
  • the points advanced in argument for both the prosecution and the defence;
  • the grounds of dismissal; and
  • the suggested grounds for appeal.

13. The report and all relevant papers, including the information, should be forwarded to Legal Adviser's Office and your Divisional HQ. This should be carried out without delay, as an appeal must be entered within 21 days after the date of dismissal of the case 17.

14. The application to state a case must be in writing and will be drafted by Legal Adviser's Office. It must identify the question(s) of law or jurisdiction on which the opinion of the High Court is sought 18 and must be delivered within the 21-day period, to a court officer for the magistrates' court whose decision is questioned 19. If it is contended that there is no evidence upon which the magistrates could have made the decision, this should be so specified. If the application is made out of time, the court has no power to extend the time in which it can be made 20.

15. The court officer for the magistrates will prepare a first draft of the case stated. This will be sent to the parties involved, who will have the opportunity to comment upon it. If you receive the draft case, you should send it to Legal Adviser's Office with any comments or suggestions for amendment. The parties must make representations within 21 days of receiving the draft 21, though this period may be extended by the court officer for on receipt of an application for extension detailing the reasons for the extension 22.

16. The final form of the draft will be sent to the parties within 21 days of the last day for making representations 23. Within 10 days of the magistrates stating the case, the claimant must file the appellant's notice at the appeal court and lodge the stated case and a copy of the judgment, order or decision in respect of which the case has been stated. Where that judgment, order or decision was itself given or made on appeal, a copy of the original judgment, order or decision appealed against must also be lodged 24.

17. If you receive a letter from the court refusing an application to state a case, you should promptly:

  • report to Legal Adviser's Office the terms on which the application was refused, so that further action may be considered; and
  • report the matter to your Divisional HQ.

18. Legal Adviser's Office will consider whether to require the magistrates to produce a certificate, confirming their refusal, and also whether to apply to the High Court under Section 111(6) of the Magistrates' Courts Act for an order requiring the court to state a case.

Appeal from the Crown Court by case stated

19. Where the defendant has successfully appealed to the Crown Court from the magistrates' court, the prosecution may appeal a decision of the Crown Court in those proceedings by way of case stated to the Divisional Court. This can only be brought on the ground that the decision was wrong on a point of law or was made in excess of jurisdiction 25. The application to the Crown Court to state a case for the opinion of the High Court must be made to the appropriate officer of the court within 21 days of the decision that is being appealed 26, although this period may be extended by the Crown Court27.

20. In contrast to the position with a case stated from a magistrates' court, where the court officer for the magistrates draft the case stated, in the Crown Court the prosecutor will draft the case stated and submit it to the judge for approval 28. A Crown Court judge can refuse to state a case if s/he considers the application is frivolous or on jurisdictional grounds (eg failure to observe time limits)29. Judicial review will be available for unreasonable refusal 30.

21. An appeal by way of case stated is not available from a judgment or other decision of the Crown Court relating to trial on indictment 31.

Procedure

22. If you think that an appeal should be considered, you should follow the same procedure as outlined with respect to magistrates' court appeals. All action will be initiated by Legal Adviser's Office.

Attorney General's reference

23. Where the defendant has been tried upon indictment and acquitted 32, the Attorney General may refer the case to the Court of Appeal for its opinion on any point of law which arose in the case 33. Whatever the opinion of the Court of Appeal, it cannot affect the acquittal of the defendant 34. However, it will guide the courts on future cases. Whilst there are no time limits for references, cases should be referred within a reasonable time. Such appeals are rare, and should only be considered in matters of fundamental importance. Legal Adviser's Office must be consulted as soon as possible in all cases where such a reference is being considered.

24. The Attorney General may also refer a case to the Court of Appeal where s/he considers that an unduly lenient sentence was passed by the Crown Court 35. This power is limited to specified offences. These do not include any health and safety offences 36.

Preparatory hearings

25. An appeal lies to the Court of Appeal against a ruling of a judge under section 31(3) Criminal Procedure and Investigations Act 1996 ("CPIA") (rulings as to admissibility of evidence and other questions of law), but only with leave of the judge or the Court of Appeal 37. The Court of Appeal may confirm, reverse or vary the decision appealed against 38.

26. A further appeal, against a decision of the Court of Appeal, may be made to the Supreme Court 39. The judge may continue a preparatory hearing notwithstanding that leave to appeal has been granted, but no jury shall be sworn until after the appeal has been determined or abandoned 40.

Prosecution rights of appeal under Part 9 of the Criminal Justice Act 2003

27. Part 9 of the Criminal Justice Act 2003 gives the prosecution a right of appeal in circumstances where a judge makes either:

  • a ruling in relation to a trial on indictment, as a result of which the prosecution is terminated (either by way of an acquittal, or by reason of a stay, or by an order that the charge be "left on the file") 41; or
  • a single or two or more qualifying evidentiary rulings 42 (although Section 62 does not apply to health and safety offences): see below – Prosecution right of appeal in respect of evidentiary rulings.

General prosecution right of appeal in respect of rulings

28. From 11th January 2005, where a judge makes a ruling in relation to a trial on indictment (ie a case being tried in the Crown Court), which will have the effect of terminating the proceedings, the prosecution may appeal that ruling to the Court of Appeal 43. Examples of 'terminating rulings' may be:

  • an adverse ruling following a submission of no case to answer,
  • a stay of proceedings as being an abuse of the process of the court,
  • a successful argument of autrefois convict or acquit (ie the defendant has already been convicted or acquitted), or
  • an adverse ruling in relation to an application regarding joinder or a severance of indictments.

29. Note that the ruling is one made by the judge "in relation to a trial on indictment", and it will therefore include rulings made in a pre-trial review or a preparatory hearing.

30. In order to appeal such a ruling, the prosecution must, immediately following the ruling, have informed the court that it intends to appeal, or have requested an adjournment to consider whether to appeal and, if such an adjournment is granted, it informs the court following such an adjournment that it intends to appeal 44. It will therefore be important, in relation to a trial on indictment, to draw the attention of solicitor agents and/or counsel to the provisions of Part 9 CJA 2003.

As a condition of informing the court that it intends to appeal, the prosecution must agree that the defendant should be acquitted of the offence subject to the appeal, if leave to appeal is not obtained or the appeal abandoned before it is determined by the Court of Appeal. There is no right of appeal unless the undertaking is given to the court of trial at or before the time of the announcement of the intention to appeal. Leave will not be granted without it.

31. No appeal can be made under these provisions after the start of the judge's summing-up to the jury 45.

32. Counsel should consider whether an appeal should be made or considered under these provisions as soon as possible. If counsel considers that an appeal should be made or considered, Legal Adviser's Office should be contacted IMMEDIATELY. Counsel should be instructed to seek an adjournment and the case should be referred to Legal Adviser's Office as a matter of urgency.

Prosecution right of appeal in respect of evidentiary rulings

33. The prosecution may also appeal to the Court of Appeal a single "qualifying evidentiary ruling" or rulings (ie a ruling which relates to the admissibility or exclusion of any prosecution evidence) 46.

34. The prosecution may not appeal such rulings unless it relates to one or more "qualifying offences" listed in Part 1 of Schedule 4 CJA 2003 47. No health and safety offences are listed in the Schedule. It is unlikely that inspectors will be concerned with these particular appeal provisions, although as the offence of manslaughter is included in the Schedule, this right of appeal may be relevant where the CPS prosecutes for manslaughter arising out of a fatality at work.

Footnotes

  1. Section 111(1) Magistrates' Courts Act ("MCA") 1980. Back
  2. Section 28 Senior Courts Act ("SCA") 1981 . An appeal by way of case stated cannot be made to challenge " a judgment or other decision of the Crown Court relating to trial on indictment " (s.28(2)). Back
  3. The procedure is set out in Part 64 of the Criminal Procedure Rules (CPR) 2011. Back
  4. A case can be stated on the application of the prosecutor where the case is dismissed – Ruse v Read [1949] 1 All ER 398. Note that a conditional discharge is not a dismissal and cannot be appealed against. Back
  5. MCA 1980, s.111. Back
  6. In Jaime v Wallet (1983) Crim LR 556, it was stated that: "It appears that the test on an appeal by way of case stated is... that the sentence is by any acceptable standard truly astonishing". See also Tucker v DPP [1924] 4 All ER 901, at 903. Back
  7. Bracegirdle v Oxley [1947] 1 All ER 126. Back
  8. See Atkinson v United States Government [1969] 3 All ER 1317 and Dewing v Cummings [1971] RTR 295. Back
  9. MCA 1980, s.111(5). `Frivolous' has been held to mean having no possible prospect of success, because the case is unarguable: R v Betting Licensing Committee for Cardiff Petty Sessions, ex parte les Croupiers Casino Ltd. (1994) 158 (20) JPN 311-312. Back
  10. R v Newcastle-under-Lyme Magistrates' Court, ex parte Coupe (1994) 158 (2) JPN 311-312, 14 May [1993] COD 330. Back
  11. R v Watson Justices [1884] 48 JP Jo 149. Back
  12. A `recognizance' is an obligation or bond acknowledged before the court, whereby the person bound (in this case, the person applying to state a case) is bound to secure the performance of some act (in this case, to prosecute the appeal without delay). `Sureties' are persons who guarantee to pay a required amount of money if the obligation is not fulfilled. Back
  13. MCA 1980, s.114. Back
  14. SCA 1981, s.66(3). Back
  15. SCA 1981, s.28A, as substituted by section 61 of the Access to Justice Act 1999. Back
  16. Griffith -v- Jenkins [1992] 1 WLR 28, HL. Back
  17. MCA 1980, s.111(2). Back
  18. Part 64.1 CPR 2012 Back
  19. Part 64.1(3) CPR 2012. Where an application is sent by post, the application is `made' when it is posted, provided that in the ordinary course of post it would be received within the 21 day period prescribed, even though in fact it is received outside that period: P & M Supplies (Essex) Ltd v Hackney LBC [1990] Crim LR 569. Back
  20. Michael v Gowland [1977] 1 WLR 296. Back
  21. Part 64.2(2) CPR 2012. Back
  22. Part 64.2(2) CPR 2012. Back
  23. Part 64.3 CPR 2012. Back
  24. Civil Procedure Rules 1998, Rules 18.4 and 18.5. Back
  25. SCA 1981, s.28. See also para 1 and footnotes 1 & 2 above. Back
  26. Part 64.6 CPR 2012. Back
  27. Part 64.6(14) CPR 2012. Back
  28. Part 64.6(8) CPR 2012. Back
  29. Rule 64.6(6) CPR 2012. Back
  30. SCA 1981, s.31. Back
  31. SCA 1981, s.28. Back
  32. The defendant may have been acquitted on the whole indictment or on some counts only: Criminal Justice Act 1972 ('CJA 1972'), s.36(1). Back
  33. CJA 1972, s.36. Back
  34. CJA 1972, s.36(7). Back
  35. Criminal Justice Act 1988 ('CJA 1988'), sections 35 and 36. Back
  36. Section 35(3), as substituted by the Criminal Justice and Public Order Act 1994, section 168(1), Schedule 9, para 34(a). For list of offences see the Criminal Justice Act 1988 (Reviews of Sentencing) Orders 2006/1116. Back
  37. Criminal Procedure and Investigations Act 1996 ("CPIA"), section 35(1). Back
  38. CPIA, section 35(3). Back
  39. Criminal Appeal Act 1968. Section 31. Back
  40. CPIA, section 36(2). Back
  41. CJA 2003 Sections 58 and 74 (definition of 'ruling'). Back
  42. CJA 2003 Section 62. Back
  43. CJA 2003 Section 58(2). Back
  44. CJA 2003 Section 58(4), (6), (7). Back
  45. CJA 2003 Section 58(13). Back
  46. CJA 2003 Section 62. Back
  47. Section 62(3), (4) and see Part 1 of Schedule 4 of CJA 2003 for the list of "qualifying offences". Back
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Updated 2022-03-21